Privy Council Appeal No. 9 of 1999
Mrs. Jennifer Ann Balfour Appellant
v. The Occupational Therapists Board RespondentFROM
THE PROFESSIONS SUPPLEMENTAL TO MEDICINE
ACT 1960
---------------
REASONS FOR REPORT OF THE LORDS OF THE
JUDICIAL COMMITTEE OF THE PRIVY COUNCILOF THE 21st June 1999,
Delivered the 21st July 1999 ------------------Present at the hearing:-
Lord MillettLord Goff of Chieveley
Lord Nolan
[Delivered by Lord Millett] ------------------
1. On 21st June 1999 at the conclusion of
the hearing their Lordships agreed humbly to advise Her Majesty that the appeal
should be dismissed, and that they would give their reasons later. This they now
do.
2. Mrs. Balfour is a qualified
Occupational Therapist. On 22nd January 1999 a Disciplinary Committee of the
Occupational Therapists Board ("the Board") found her guilty of
infamous conduct in a professional respect and directed that her name be removed
from the Register ("the Register") maintained by the Board under the
provisions of the Professions Supplementary to Medicine Act 1960 ("the
Act"). The facts giving rise to the charges against her were as follows.
3. Mrs. Balfour holds a Diploma in
Occupational Therapy granted in January 1966. Her name was duly entered on the
Register on 25th January 1966. This entitled her to describe herself as a
"State Registered Occupational Therapist".
4. The Board has statutory power to remove
from the Register the name of any person who has failed after due warning to pay
the annual fee prescribed for the retention of his or her name on the Register.
The Register is brought up to date each year and the names of those who have
failed to pay the annual fee are duly removed from the Register. At some stage
between 1966 and 1993 Mrs. Balfours name was removed from the Register
pursuant to these provisions.
5. In January 1993 Mrs. Balfour applied
for her name to be re-admitted to the Register and paid the prescribed fee. Her
application was granted and her name was duly re-admitted to the Register. She
failed to pay the annual registration fee due in September 1994, and on 30th
September 1994 her name was once more removed from the Register.
6. On 11th April 1995 Mrs. Balfour applied
for the post of District Occupational Therapist (Eastern District) with the
Wiltshire County Council. It was the policy of that Council, in common with
other local authorities, to employ as occupational therapists only those whose
names currently appeared on the Register. In her application form Mrs. Balfour
falsely represented that she was a State Registered Occupational Therapist and
gave her registration number. Her application was successful.
7. In the course of her employment Mrs.
Balfour was responsible for the occupational therapists employed by the Councils
Eastern District. One of her duties was to ensure that their names were
currently entered in the Register.
8. On 1st April 1997, following a
reorganisation of local government, the Eastern District of Wiltshire County
Council was brought within the area administered by Swindon Borough Council, and
Mrs. Balfour became an employee of the Borough Council. In August or September
1997 one Avril Evans, the Councils Assistant Chief Officer, discovered that
Mrs. Balfours name was not currently entered on the Register. On three
separate occasions Mrs. Evans instructed her to obtain re-registration as
quickly as possible. After the third occasion of asking Mrs. Balfour applied for
her name to be re-admitted to the Register. It was re-admitted on 30th September
1997.
9. Mrs. Evans initiated a disciplinary
inquiry into Mrs. Balfours failure to obtain re-registration and Mrs. Balfour
was suspended on full pay pending the outcome of the inquiry. At some date which
is not recorded her employment by the Borough Council was terminated. She has
since worked as an agency occupational therapist.
10. By a letter dated 3rd November 1998
Mrs. Balfour was notified that a meeting of the Disciplinary Committee of the
Board would take place on 22nd January 1999 to inquire into the following
charges against her:-
"That you being a State Registered Occupational Therapist are guilty of infamous conduct in a professional respect either individually or cumulatively in that
1. In an application form dated 11th April 1995 for the position of District Occupational Therapist with Wiltshire County Council you falsely declared that you were at that date a State Registered Occupational Therapist.
2. From 11th April 1995 to 30th September 1997 you failed to obtain state registration as an Occupational Therapist as was required by your employers."
11. Mrs. Balfour did not appear and was not
represented at the hearing on 22nd January 1999. The Disciplinary Committee
received evidence from two witnesses, Mrs. Harkin, the Registration Officer at
the Council for Professions Supplementary to Medicine, and Mrs. Evans (Assistant
Chief Officer for Swindon Borough Council). Mrs. Harkin confirmed that between
September 1994 and September 1997 Mrs. Balfours name did not appear on the
Register. Mrs. Evans gave evidence of Mrs. Balfours employment history. She
confirmed that Mrs. Balfour had described herself as a State Registered
Occupational Therapist in her application form, and produced the form which Mrs.
Balfour had completed. She testified that registration on the Register was a
requirement for all occupational therapists employed by the Council.
12. Although Mrs. Balfour did not appear
before the Disciplinary Committee, she submitted a letter dated 21st January
1999 and enclosures as part of her case, and these were admitted in evidence by
the Committee. In her letter she admitted that she had made a false declaration
when applying for the post, but asked for certain mitigating circumstances to be
taken into account. She submitted that there was no case to answer on the second
charge because registration on the Register was not a requirement of her
employment.
13. After retiring to consider its decision
the Disciplinary Committee announced that, having taken account of all that had
been put before it, it found both charges proved and determined that Mrs.
Balfours name should be removed from the Register. Mrs. Balfour now appeals
to their Lordships. It would seem from her petition that she appeals against
sentence only, but in her Case she appears also to challenge the findings of the
Disciplinary Committee. Their Lordships are willing to treat the appeal as an
appeal against both conviction and sentence.
14. In her Case Mrs. Balfour she sets out
at length the material which she placed before the Disciplinary Committee by way
of mitigation. She acknowledges that she made a false statement in her
application form, but states that this was not a deliberate lie but a genuine
mistake. She states that since leaving the employment of Swindon Borough Council
she has worked as an agency occupational therapist for Reading Social Services,
who are aware of the position but wish her to continue to work for them. She
concludes by submitting that she made a genuine mistake, that her conduct was
neither disgraceful nor dishonourable, and that the penalty imposed is extreme.
15. Section 9(1)(b) of the Act provides
that where a person is judged by the appropriate disciplinary committee to be
guilty of infamous conduct in any professional respect it may, if it thinks fit,
direct that the persons name shall be removed from the Register. The
expression "infamous conduct in a professional respect" employs
somewhat archaic language and conveys a misleading impression that real
wickedness is involved. As long ago as 1930 Scrutton L.J. said that it was a
great pity that the word "infamous" was used to describe the conduct
of a medical practitioner who advertised his services. He observed that such
conduct was better described as "serious misconduct in a professional
respect" and that this is all that is meant by "infamous
conduct": see Rex. v. General Council of Medical Education and
Registration of the United Kingdom [1930] 1 K.B. 562 at p.
569.
16. It has been settled law for more than a
century that if it is shown that a medical man, in the course of his profession,
has acted in a way which would reasonably be regarded as disgraceful and
dishonourable by his professional brethren of good repute and competency, it is
open to his disciplinary body to find him guilty of "infamous conduct in a
professional respect". Such a finding involves questions of fact and
degree. The members of the Disciplinary Committee are the judges of the gravity
of the offence. Their Lordships cannot substitute their opinion for theirs. They
can intervene only where there is no evidence to support the Committees
findings of fact, or where no reasonable Committee properly instructed on the
law could regard the facts proved as constituting serious professional
misconduct.
17. In June 1996 the Disciplinary Committee
of the Board, acting in the performance of its duty under Section 9(6) of the
Act and as guidance to the profession, published a statement of the kind of
conduct which it considered to be "infamous conduct in a professional
respect". Mrs. Balfours conduct was not of a kind mentioned in the
statement. That is undoubtedly relevant, but it is not conclusive of the
question. Section 9(6) expressly permits a finding that a person is guilty of
infamous conduct in a professional respect by reference to matters not mentioned
in such a statement. Their Lordships are satisfied that the Disciplinary
Committee was entitled to take a serious view of Mrs. Balfours conduct. Her
appeal against conviction must fail. It remains to consider her appeal against
sentence.
18. The Disciplinary Committee has no power
to impose a fine or issue a reprimand. It may postpone judgment for up to two
years; but the only penalty it may impose is to order the removal of the
offenders name from the Register. By Section 9(5) of the Act a person whose
name is removed from the Register in pursuance of a direction of a disciplinary
committee is not entitled to have his or her name re-admitted to the Register
again except by the direction of the committee on his or her application.
Section 9(5) also authorises the committee to direct that no application for
re-admission to the Register shall be made until the expiration of a specified
period. No such direction was made in the present case.
19. Their Lordships consider that Mrs.
Balfours deeply held belief that the penalty imposed on her was excessive is
based on a misunderstanding. She is under the impression that her name has been
permanently removed from the Register. No one has explained to her that she is
free at any time to apply for her name to be re-admitted to the Register. Her
registration has, in effect, been temporarily suspended but for an indefinite
period. The severity of the penalty is mitigated by her right to apply to be
restored to the Register.
20. The position is, perhaps, not entirely
satisfactory, and not only from Mrs. Balfours point of view. Their Lordships
cannot judge the severity of the penalty without knowing how long Mrs. Balfours
name is to remain off the Register; while she has been given no indication how
long she should wait before an application for restoration to the Register would
not be summarily dismissed as premature. But their Lordships would not assume
that the Disciplinary Committee will make an inappropriate response to a
properly supported application, or that its secretariat would be unhelpful if
Mrs. Balfour asked for guidance as to the appropriate time to make it.
21. It was for these reasons that their
Lordships humbly advised Her Majesty that the appeal should be dismissed. In all
the circumstances, they do not recommend that any order should be made for
costs.
[33]